'Explosion' in School Lawsuits Has Ended, 2 Unpublished Studies Find

Washington--The nation's appellate and supreme courts are accepting
fewer lawsuits against school officials than they did during the 1960's
and 1970's, and administrators seem to be winning a much higher
percentage of them, two new studies by leading school-law experts have
found.

The authors of the unpublished reports, which were outlined here
Nov. 18 at the annual convention of the National Organization on Legal
Problems of Education, said their findings indicate that "the pendulum
is beginning to swing back" following an "explosion" in the number of
school-related cases from 1960 to 1979.

In recent years, a number of prominent educators have complained
that judicial interference in school management has created a
bureaucratic morass and has stifled school improvement.

In a speech to the American Bar Association last February, for
example, former Secretary of Education William J. Bennett argued, "It's
time to declare a broad consensus that the first purpose of education
law is to enhance education. ... Educational decisions should be made
by educators, not lawyers."

The researchers speculated that the decline in school-related cases
is due primarily to President Reagan's appointment of conservative
judges to the U.S. Supreme Court and to the lower federal bench. Mr.
Reagan has appointed more judges than any of his 39 predecessors.

They also attributed the trend to a growing propensity among judges
to defer to administrators in educational disputes, and to the wider
use of arbitration and other alternative dispute-resolution
methods.

The first study, by Perry A. Zirkel of Lehigh University and Sharon
N. Richardson of the Springfield Township (Pa.) School District,
tallied all reported state- and federal-court opinions affecting
precollegiate education dating back to the 1940's. They were able to
count only appellate- and supreme-court decisions because trial-court
rulings typically are not published.

The researchers found that the number of state- and federal-court
decisions jumped from 3,744 during the 1960's to 6,862 during the
1970's, a 45 percent increase. They project, however, that by the end
of this decade the number of such rulings will drop to 6,470, a 5.7
percent decline.

Mr. Zirkel, a professor of law and education, and Ms. Richardson, an
assistant superintendent and lawyer, said the trend was most pronounced
in the federal appellate courts and the U.S. Supreme Court. In those
forums, the number of published opinions is expected to drop by some 30
percent, from 2,182 during the 1970's to 1,526 during the 1980's.

At the state-court level, the number of decisions is expected to
increase by only 5.3 percent this decade, following a 38 percent jump
from the 1960's to the 1970's.

The study also divided all of the cases among five categories to
examine patterns of change in the rates of litigation. The subgroups
were school desegregation; all other suits of a systemwide nature, such
as school finance; employees; special education; and all other suits
involving students.

At the federal level, the number of opinions is expected to decline
in this decade relative to the 1970's in all categories except special
education. That area of litigation, which is being fueled by the
Education of the Handicapped Act of 1971 and related laws, is expected
to continue rising, from 2 cases in the 1960's, to 22 in the 1970's, to
342 in the 1980's.

In state courts, desegregation lawsuits are expected to decline,
from 43 cases in the 1970's to 16 in the 1980's. Other systemwide suits
are expected to remain steady at about 2,400. Employee lawsuits are
expected to rise, from 1,778 to 2,062, as are special-education cases,
from 40 to 99. Suits involving other students are expected to fall,
from 410 to 307.

In a second part of the study focusing on U.S. Supreme Court
decisions, Ms. Richardson found that administrators are more apt today
to be on the winning side than they have been since the 1950's.

According to her analysis, in the 1950's the Court issued rulings in
eight school-related cases in which there was a clear victor.
Administrators won five and lost three, giving them a 64 percent
winning percentage.

Mr. Richardson did similar tabulations for the next three decades.
In the 1960's, administrators won only 2 cases and lost 18, for a 10
percent win percentage. In the 1970's, the percentage climbed back to
30 percent (13 wins and 30 losses), and as of July it had risen to 53
percent for this decade (19 wins and 17 losses).

Mr. Zirkel noted that his co-author's findings probably reflect a
similar trend in lower state and federal courts because those courts
are bound to follow the Supreme Court's precedents and because the
Justices set the tone for the rest of the nation's judiciary.

The second study, by Henry Lufler Jr. of the University of
Wisconsin-Madison, focused solely on state- and federal-court decisions
in cases stemming from the suspension and expulsion of students.

According to Mr. Lufler, assistant dean of the university's school
of education, the number of published state and federal appellate-court
decisions in this area peaked in 1970, when it reached 26. It then
declined steadily until it reached 5 in both 1982 and 1983, rose to 15
in 1986, then dropped back to 10 in 1987.

The study also found that school officials won 60 percent of these
cases in the years 1965-69, 55.1 percent in 1970-74, 55.5 percent in
1975-79, 58.8 percent in 1980-84, and 66.7 percent in 1985-87.

"No evidence of a 'litigation explosion' is evident from an
examination of 23 years of suspension and expulsion cases," Mr. Lufler
concluded. "There has been a substantial movement of court attention
from area to area," such as from dress codes in the 1970's to drug and
alcohol abuse in the 1980's, "with new subject topics emerging. ...
Each issue seems to have a life of its own and then fades in its
importance."

Mr. Lufler also noted that policymakers and the media tended to
overstate the likely ramifications of the Supreme Court's rulings in
the 1970's regarding the due-process rights of students facing
punishment, having predicted wrongly that those decisions would prompt
a wave of suits.

"Given the impact of commentaries about litigation rates on teachers
and administrators, commentators should avoid becoming mesmerized by
increases in one area, or by offering comments based on isolated groups
of cases," he suggested.

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